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Himachal Pradesh High Court · body

2012 DIGILAW 438 (HP)

Uttam Chand v. State Of Himachal Pradesh

2012-08-17

V.K.SHARMA

body2012
JUDGMENT V.K. Sharma, J. The petition has been filed on the following substantive prayers: "i) That the age of superannuation of the petitioner may be determined on the basis of his initial appointment as Class IV daily wager at par with the then Class IV Government servants and class IV daily wager servants appointed before amendment in the F.R. Rule 56 and not as per the amended F.R Rule 56 as per notification dated 10.5.2001 (Annexure P-4), which is highly discriminatory and violative of articles 14 and 16 of Constitution of India. ii) That the class IV daily waged continued service before or after the amendment in the F.R Rule 56 of petitioner followed by regular service may be taken into consideration for the purpose of determining the age of superannuation of petitioner. iii) That respondents may be directed to regularise the services of petitioner with retrospective effect as per policy dated 6.5.2000, as the petitioner had completed 8 years of continuous daily wage service with 240 days in each calendar year as on 31.3.2000 and respondents may be directed to allow the petitioner to continue serving till the age of 60 years. iv) That the respondents may very kindly be directed to allow the petitioner to continue in service till he attains the age of 60 years." 2. In reply, the respondents have taken the following stand vide paras 5 and 6 on merits: "5. That in reply to this para it is submitted that the instructions issued vide letter No. PER (AP)-CB (2)-1/2006 vol.-VIII dated 22.02.2010 is not relevant for the retirement of the present petitioner as these instructions are relevant to the disengagement of daily wager. The present petitioner is not a daily wager but he is a regular employee and he is liable to retirement on 31.03.2012 as per the Notification FIN (C) A (3)-3/98 dated 10.05.2001. It is submitted that the present petitioner is appointed as regular chainman on 29.06.2007. The present petitioner is not a daily wager but he is a regular employee and he is liable to retirement on 31.03.2012 as per the Notification FIN (C) A (3)-3/98 dated 10.05.2001. It is submitted that the present petitioner is appointed as regular chainman on 29.06.2007. As per the Notification FIN (C) A (3)- 3/98 dated 10.05.2001 a "workman appointed on or after the date of publication of this notification in the Rajpatra Himachal Pradesh shall retire from service on the afternoon of the last day of month in which he attains the age of 58 years." The date of birth of the present petitioner is 09.03.1954 hence the date of the retirement of present petitioner on his attaining the age of superannuation is 31.03.2012. 6. That in reply to this para it is submitted that the respondent No-1 has issued clarification regarding retirement of the petitioner it has been clarified vide letter No. Rev-A (B)2-9/2008 dated 22-3-2012 annexed as R-1, that Notification issued by the Finance Department is self explanatory. Petitioner has been regularised during the year 2007, therefore, he will retire on attaining the age of 58. The petitioner was appointed as daily wages chainman on the basis of Muster Roll for 89 days on 27.03.1992 and his services were regularised on 29.06.2007. Rest of the contents of this para are wrong, hence denied. The instructions issued vide letter No. PER (AP)-C-B (2)-1/2006 vol-VIII dated 22.02.2010 is not relevant for the retirement of the present wager. The present petitioner is not a daily wager but he is a regular employee and he is liable to retirement on 31.03.2012. It is submitted that the present petitioner is appointed as regular chainman on 29.06.2007. As per the Notification FIN (C) A (3)-3/98 dated 10.05.2001. The respondent No-1 has clarified the matter from the Government regarding retirement of the petitioner. The Government has clarified vide letter No. Rev-A(B)2- 9/2008 dated 22-3-2012 (annexed as R-1 above) that Notification issued by the Finance Department is self explanatory, petitioner has been regularised during the year 2007, therefore, he will retire on attaining the age of 58. The date of birth of the present petitioner is 09.03.1954; hence the date of the retirement of present petitioner on his attaining the age of superannuation is 31.03.2012." 3. Some undisputed facts may be noticed first. The date of birth of the present petitioner is 09.03.1954; hence the date of the retirement of present petitioner on his attaining the age of superannuation is 31.03.2012." 3. Some undisputed facts may be noticed first. The petitioner had joined the employment of the respondent Department as a Chainman on daily wage basis for 89 days on 27.03.1992, in terms of Office Order of even date, Annexure P-1, and is stated to have joined as such on 01.04.1992. His services were regularised vide Office Order dated 29.06.2007, Annexure P-2. He was retired from service on 31.03.2012 on attaining the age of superannuation, that is, 58 years in terms of Notification dated 10th May, 2001, Annexure P-4. 4. The grievance of the petitioner is that as per letter dated 22nd February, 2010, Annexure P-3, the age of retirement of a Daily Wager is 60 years and even prior to issuance of the Notification dated 10th May, 2001, Annexure P-4, the age of retirement of a regular Class-IV employee was also 60 years. Thus, according to him, he has been discriminated against viz-a-viz daily wager Class-IV incumbents who retire at the age of 60 years. However, the contention of the petitioner, being without any merit, does not deserve any favourable consideration for the reason that whereas a daily wager does not hold a post under the State, a regular hand is holder of such post and it is within the competence of the State Government to fix their retirement age. There is no denying the fact that those daily wagers who were regularised prior to 10.05.2001 were to retire at the age of 60 years and those regularised thereafter were to superannuate at the age of 58 years. Since the petitioner, who was regularised on 29.06.2007, fell within the second category and has been rightly retired at the age of 58 years. 5. Another contention raised on behalf of the petitioner is that since he had joined the daily wage employment of the respondent-Department in the year 1992, his services ought to have been regularised on completion of eight years service in the year 2000, as per the policy framed by the Government. However, since the petitioner has already availed the benefit of regularisation on and w.e.f. 29.06.2007 without any demur or protest, he cannot be permitted to say at this stage that he should have been regularised in the year 2000. However, since the petitioner has already availed the benefit of regularisation on and w.e.f. 29.06.2007 without any demur or protest, he cannot be permitted to say at this stage that he should have been regularised in the year 2000. 6. In view of the above, the petition stands disposed of so also pending CMP(s), if any.